Becker v. Marble Creek Irr. Co.

• Decision Date: 16 July 1897
• Docket Number: 779
• Court: Utah Supreme Court
• Parties: JERRY BECKER, APPELLANT, v. THE MARBLE CREEK IRRIGATION COMPANY ET AL., RESPONDENTS

49 P. 892

15 Utah 225

JERRY BECKER, APPELLANT, v. THE MARBLE CREEK IRRIGATION COMPANY ET AL., RESPONDENTS

No. 779

Supreme Court of Utah

July 16, 1897

Appeal from the First district court, Box Elder county. Hon. C. H Hart, Judge.

Action by Jerry Becker against the Marble Creek Irrigation Company and others. From a judgment for defendants plaintiff appeals.

Reversed and remanded.

L. R Rhodes, for appellant.

Evans &amp Rogers and A. G. Horn, for respondents.

CHERRY, D. J. MINER, J., concurs. ZANE, C. J., dissenting.

OPINION

CHERRY, D. J.:

This is a decree of the First judicial district court of Box Elder county, giving the defendants all the waters of Marble creek, in that county, for irrigation purposes. The defendant company was organized in 1893 for the purpose of controlling and distributing so much of the water of said creek as might be necessary for the irrigation of the defendant's lands. The record shows that Marble creek has its source in the mountains above Park valley, through which it flows about 10 miles; that the defendants own and occupy a number of small farms, aggregating about 900 acres, which they irrigate with its waters; that the plaintiff occupies 160 acres of meadow lands, situated from 4 to 5 miles below the lands of the defendants, about 100 acres of which he alleges have been irrigated by himself and through his predecessors in interest, from the waters of said creek, for about 30 years. The defendants deny the appropriation by the plaintiff and his grantors, and claim by way of cross complaint that they and their grantors have used all the waters of said creek for about 26 years except the overflow during high water. The case was tried by the court, and the decree entered on the 30th day of June, 1896. The testimony on some of the facts material to support the decree was contradictory and unsatisfactory, but there seems to be little or no dispute upon the vital issue of plaintiff's right to use a sufficient amount of said water for the purposes for which he claimed it. The uncontradicted evidence showed that plaintiff's land produced wild and tame grasses when sufficiently watered; that the defendants, since their appropriation of the said waters have been gradually increasing the number of acres to be irrigated, thus requiring a corresponding increase in the quantity of water, all of which came from the waters of said Marble creek; that some of the defendants permitted large quantities of water to be wasted by suffering it to flood the roads, and flow into unused lands; that the plaintiff needed the water for irrigating in the early part of the season, viz., May, June and fore part of July. The evidence also shows, and it is virtually conceded in the ninth finding of fact by the court, that in those months there is a surplus of water in said creek; that sufficient water came down said creek in the natural channel on the months above mentioned to supply the plaintiff's wants until by the gradual increase of the defendants' acreage they used practically all of the water, and that thereafter plaintiff's farm decreased in the production of its usual crop. While there may be some difficulty from the conflicting evidence to determine which of these parties were the prior appropriators of water at regular periods, yet we think it is plain that, even conceding the defendants were, prior to the year 1883, and including that year, and since, the plaintiff became the next subsequent appropriator, using the water not appropriated by the defendants, and that his present lack of water is caused by the defendants increasing their demand until they use all the water in the stream, and thus totally deprive the plaintiff of whatever rights he had acquired in 1883, by his appropriation. In the arid region water is life, and it is too precious an article to be permitted to run to waste. The great weight of modern authority is to the effect that when an appropriator permits part of the water appropriated to run to waste, or fails to use a certain portion of it for some beneficial use or purpose, he can only hold that part of the water which has been actually applied to a beneficial use, and his right is limited to the quantity so used. Sieber v. Frink, 7 Colo. 148, 2 P. 901; Combs v. Ditch Co., 17 Colo. 146, 28 P. 966.

The mere fact that the defendants had secured control of all the water through a so-called "saving ditch" would not give them the absolute right to deprive a subsequent appropriator of such quantity as they did not put to a beneficial use. Fort Morgan Land & C. Co. v. South Platte Ditch Co., 18 Colo. 1, 30 P. 1032; Reservoir Co. v. Southworth, (Colo Sup.) 13 Colo. 111, 21 P. 1028.

The awarding of a priority in excess of the amount actually appropriated for a beneficial use at the time is error. The saving ditch was constructed at a time when the plaintiff, or his predecessors, was using part of the water. It diverted all the water from the natural channel for some distance and then discharged the overflow back into the channel. This could give to defendants only such increase or saving of the volume of the stream as was occasioned by the construction of the ditch; and whatever rights the plaintiff had acquired in the waters of Marble creek prior to the construction of the ditch would not be impaired, even if he made no...